NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 09-3455
___________
QIN LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A077 174 598
Immigration Judge: Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 28, 2010
Before: FUENTES, GREENAWAY AND VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 29, 2010)
___________
OPINION
___________
PER CURIAM
Qin Lin, proceeding pro se, petitions for review of an order of the Board of
Immigration Appeals (BIA or Board), which denied her motion to reopen and
remand. We will deny the petition for review.

Lin was placed in removal proceedings in 1999 for being in the United States
without having been admitted or paroled. She conceded removability, but sought asylum
and related relief based on her allegation that she and her husband were persecuted in
China due to the countrys coercive family planning practices. An Immigration Judge
(IJ) denied relief, finding that Lin was not credible. The BIA affirmed without opinion
in February 2003. In May of that year, Lin filed a motion to reopen and remand for
adjustment of status based on the approved labor petition of her second husband in the
United States. The BIA granted the motion and remanded to the IJ for hearings.
On remand, Lin first tried to prove that she had been divorced from her husband in
China, but later admitted that she had in fact never been married in China and that she had
made up the story at the urging of the snakeheads who smuggled her out of China. Lin
also sought relief based on her allegation that she would be forcibly sterilized if she were
to be returned to China because she and her husband now had two U.S.-born children.
The IJ found that her asylum claim was untimely, and that she did not meet her burden for
withholding of removal or protection under the Convention Against Torture (CAT)
because the possibility that she would be persecuted and/or tortured was too speculative.
The IJ also found that her application was frivolous. Regarding the application for
adjustment of status, the IJ noted that Lin was inadmissible because of fraud and
misrepresentation, and that she would need a waiver of inadmissibility. Having denied
her husbands adjustment of status application, the IJ found that Lin did not qualify for a

waiver, because she did not have a qualifying relative.

On appeal, the BIA affirmed the IJs denial of relief, and also denied Lins motion
to remand based on the birth of a third child.1 Lin filed a petition for review of that
decision. We held: (1) we lacked jurisdiction to consider Lins challenge to the finding
that her asylum application was untimely; (2) the documents Lin had submitted were
insufficient to compel a reasonable adjudicator to find it was more likely than not she
would be persecuted if returned to China; (3) the BIA did not abuse its discretion in
denying her motion to remand based on her assertion that the birth of a third child would
subject her to forced sterilization; and (4) the BIA applied the appropriate legal standard
in denying Lins application for adjustment of status, and we lacked jurisdiction to
consider the propriety of its discretionary denial. We noted, however, that the BIA had
failed to review whether the IJ properly found Lins application to be frivolous. We
remanded for consideration of whether the frivolousness finding should stand. Lin v.
Atty Gen., No. 07-2231, 2008 WL 2083139 (3d Cir., May 19, 2008). On October 29,
2008, the BIA vacated the IJs finding that Lins asylum application was frivolous, but
noted that Lin remained removable and ineligible for relief pursuant to the prior decisions
of the IJ and BIA.
In January 2009, Lin filed a motion to reopen and remand. Lin claimed that

The BIA, however, granted Lins husbands motion to remand for clarification on the
IJs decision to deny adjustment in the exercise of discretion; it appears he was ultimately
able to adjust his status.
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because the BIA had vacated the frivolousness finding, and because her husband was now
a permanent resident, she was now eligible to adjust her status. She also again claimed
eligibility for asylum, withholding of removal, and protection under the CAT, based on
changed country conditions in China. Lin submitted:
her affidavit, a new application for adjustment of status, a new application
for a waiver of inadmissibility, the 2007 Country Report on China, the 2004
statement of Assistant Secretary Dewey, the 2004 testimony of T. Kumar,
documents that purport to be from the People's Government of Tingjiang
Town, Mawei District, Fuzhou City, statements and identity documents
from-her father, husband, and friends in the United States, and letters,
identity cards, birth control information cards, and sterilization certificates
from a friend and a classmate in China.
BIA decision, A.R. 3-4. The BIA noted that the documents from China had not been
authenticated pursuant to 8 C.F.R. 1287.6, and recognized that this Court has held that
failure to follow that regulation should not lead to automatic exclusion of the evidence,
but that the alien should be allowed to prove authenticity in another matter. A.R. 4, citing
Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004); and Leia v. Ashcroft, 393 F.3d 427,
433-34 (3d Cir. 2005). The BIA found, however, that Lin had failed to establish the
authenticity of her foreign documents in any manner. A.R. 4.
The Board found that Lin had not shown changed circumstances that would
overcome the time bar for an asylum application, and that her evidence was inadequate
to demonstrate a realistic chance that she can establish her eligibility for relief from
removal or protection under the [CAT] due to Chinas family planning policy. A.R. 4.
The BIA found that although she was no longer statutorily ineligible for adjustment of
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status based on a frivolous asylum finding, she had failed to demonstrate that she merits
such relief in the exercise of discretion. Id. Lin filed a timely petition for review.
We have jurisdiction to consider the BIAs decision denying Lins motion to
reopen and remand.2 There are at least three independent grounds on which the BIA may
deny a motion to reopen, two of which are pertinent here. [W]hen the Board or an
Immigration Judge denies reopening on prima facie case grounds, the ultimate decision
should be reviewed for an abuse of discretion, while findings of fact should be reviewed
for substantial evidence. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). [I]n
cases in which the ultimate grant of relief is discretionary ( [including] . . . adjustment of
status, but not withholding of deportation), the BIA may leap ahead, as it were, over the
two threshold concerns (prima facie case and new evidence/reasonable explanation), and
simply determine that even if they were met, the movant would not be entitled to the
discretionary grant of relief. Korytnyuk v. Ashcroft, 396 F.3d 272, 282-83 (3d Cir.
2005). Such leap ahead decisions are reviewed for an abuse of discretion. Id. The
Board abuses its discretion only where the ultimate decision denying reopening was
arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994).
As noted, the Board found that Lins evidence was inadequate to demonstrate a

We again lack jurisdiction to consider the BIA's decision that Lin's asylum claim is
untimely and that it does not meet any exceptions to the timeliness requirement.
Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).
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realistic chance that she can establish her eligibility for relief from removal or protection
under the [CAT] due to Chinas family planning policy. A.R. 4. The Board found that
the evidence Lin submitted had not been authenticated in any way, and that she had not
shown that any economic sanction that might be applied would amount to persecution.
Given the fact that Lin previously submitted a completely fictitious asylum claim, the
Board did not abuse its discretion in finding that the evidence Lin submitted did not
support a prima facie case for reopening.
We further find that the Board did not abuse its discretion in denying Lins motion
to reopen for waiver of inadmissibility and adjustment of status. The BIA previously
stated that the numerous fraudulent misrepresentations Lin made before the IJ
constituted a compelling adverse factor mitigating heavily against a favorable exercise
of discretion in her case. A.R. 176. The Board did not abuse its discretion in holding
that Lin did not meet her burden of demonstrating that she merits favorable discretion.
For the foregoing reasons, we will deny the petition for review.